Answer to Debt Collection Lawsuit (with FDCPA Affirmative Defenses) - Texas

IN THE [____________] COURT OF [____________] COUNTY, TEXAS

Cause No. [____________]

DEFENDANT'S ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES

Filed Pursuant to Tex. R. Civ. P. 92 and 94

COMES NOW the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], and files this Original Answer to the petition of Plaintiff, [____________] ("Plaintiff"), and respectfully shows the Court as follows:

I. PRELIMINARY STATEMENT AND RESERVATION OF RIGHTS

1. Defendant files this Original Answer within the time prescribed by Tex. R. Civ. P. 99(b) — by 10:00 a.m. on the Monday next after the expiration of twenty (20) days after the date Defendant was served. Defendant reserves all rights, defenses, special exceptions, and objections available under the Texas Rules of Civil Procedure.

2. By filing this Answer, Defendant does not admit that Plaintiff has stated a cause of action, that Plaintiff owns or has standing to sue upon the alleged debt, or that the amount claimed is correct. Defendant expressly preserves the right to file special exceptions under Tex. R. Civ. P. 91 and verified pleas under Tex. R. Civ. P. 93.

3. Defendant does not have possession of the underlying account documents and demands that Plaintiff prove, by a preponderance of the evidence, each element of its claim, including the existence, ownership, amount, and enforceability of the alleged debt.

II. GENERAL DENIAL

4. Pursuant to Tex. R. Civ. P. 92, Defendant enters a general denial of each and every, all and singular, the allegations contained in Plaintiff's petition, and demands strict proof thereof by a preponderance of the evidence as required by the laws of the State of Texas.

III. VERIFIED DENIAL (SWORN ACCOUNT)

5. To the extent Plaintiff sues on a sworn account under Tex. R. Civ. P. 185, Defendant files the following verified denial under Tex. R. Civ. P. 93(10): Defendant denies, under oath, that the account that is the foundation of Plaintiff's claim is just and true, that it is due, and that all just and lawful offsets, payments, and credits have been allowed. (See verification below.)

IV. RESPONSES TO THE NUMBERED ALLEGATIONS (OPTIONAL)

6. Paragraph [____] of the Petition: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

7. Paragraph [____] of the Petition: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

8. Paragraph [____] of the Petition: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

V. AFFIRMATIVE DEFENSES

Without waiving the foregoing general denial, and in the alternative if necessary, Defendant affirmatively pleads the defenses set forth below as authorized by Tex. R. Civ. P. 94, and expressly reserves the right to amend as discovery proceeds. Defendant should select only those defenses supported by the facts; pleading a clearly inapplicable defense may be subject to Tex. R. Civ. P. 13 / Tex. Civ. Prac. & Rem. Code ch. 9–10 sanctions.

☐ First Defense — Statute of Limitations. Plaintiff's claim is barred, in whole or in part, by the applicable four-year statute of limitations. Tex. Civ. Prac. & Rem. Code § 16.004(a)(3) addresses debt, subsection (c) addresses specified account actions, and § 16.051 is the residual four-year provision. Plaintiff's claim accrued on [DATE], when [IDENTIFY THE ALLEGED BREACH OR DEFAULT AND THE PAYMENT TERM], more than four years before this suit was filed.

☐ Second Defense — Disputed Right to Collect Assigned Account. Defendant disputes that Plaintiff acquired the right to collect this account because [IDENTIFY THE TRANSFER OR ACCOUNT EVIDENCE IN DISPUTE]. Defendant requests proof connecting the alleged account to Plaintiff's claimed transfer. If Defendant denies the genuineness of an assignment of a written instrument sued on, Defendant must make a verified denial under Tex. R. Civ. P. 93(8) and complete the verification below. A capacity objection under Rule 93(1) or (2) likewise requires verification. Do not treat an absent bill of sale by itself as automatic loss of standing.

☐ Third Defense — Defect in Pleading / No Cause of Action (Special Exceptions). Plaintiff's petition fails to plead facts sufficient to state a cause of action, fails to attach a copy of the written instrument sued upon, and/or fails to itemize the amount claimed. Defendant excepts to the petition under Tex. R. Civ. P. 91 and requests that Plaintiff be ordered to replead.

☐ Fourth Defense — Collection-Conduct Defense or Setoff (if authorized). Defendant asserts [SPECIFIC DEFENSE OR SETOFF] under [CURRENT STATE AUTHORITY] because [MATERIAL FACTS]. A claimed FDCPA violation by itself does not establish a defense to the debt. If a separate § 1692g claim is asserted, identify the covered collector and debt, the initial communication and required notice or a timely written dispute, and the specific conduct that violated the cited subsection. A formal civil pleading is not an initial communication under 15 U.S.C. § 1692g(d). Delete this option if no supported defense or setoff applies.

☐ Fifth Defense — Plaintiff Failed to File the Required Surety Bond (Texas Debt Collection Act). Plaintiff and/or its agents are "third-party debt collectors" under the Texas Debt Collection Act, Tex. Fin. Code ch. 392, and may not engage in debt collection in Texas unless they have obtained and filed with the Secretary of State a $10,000 surety bond as required by Tex. Fin. Code § 392.101. Plaintiff has failed to plead or prove compliance. Engaging in debt collection without the required bond is a violation of ch. 392. [Verify the plaintiff's bond status using the Secretary of State debt-collector search before relying on this defense.]

☐ Sixth Defense — Payment, Accord and Satisfaction, Release, Discharge. The alleged debt has been paid, satisfied, settled, released, discharged (including by discharge in bankruptcy), or otherwise extinguished, in whole or in part. Tex. R. Civ. P. 94.

☐ Seventh Defense — No Account Stated; No Agreement to the Balance. Defendant never received, reviewed, or assented to the balance alleged, and never agreed that the stated sum was a true and correct statement of the account. The elements of an account stated are not satisfied.

☐ Eighth Defense — Statute of Frauds. To the extent Plaintiff relies on an agreement required to be in writing, the claim is barred by the Statute of Frauds, Tex. Bus. & Com. Code § 26.01.

☐ Ninth Defense — Erroneous or Unauthorized Amount; Unauthorized Fees; Usury. The amount claimed is incorrect, inflated, or includes interest, fees, or charges not authorized by any agreement, that are unconscionable, or that are usurious. Plaintiff must itemize and substantiate every component of the amount demanded.

☐ Tenth Defense — Failure to Mitigate. Plaintiff and/or its predecessors failed to take reasonable steps to mitigate the damages alleged.

☐ Eleventh — Challenge to Account-Record Evidence. Defendant disputes the foundation for the following account records: [IDENTIFY RECORDS AND SPECIFIC DEFECT]. A custodian, another qualified witness, or a compliant Rule 902(10) affidavit or declaration may establish the Rule 803(6) predicates. Defendant objects if Plaintiff does not establish that the records were made and kept in the regular course of business, or if their source, method, or circumstances of preparation show a lack of trustworthiness. Tex. R. Evid. 803(6)(A)–(E), 902(10).

☐ Twelfth Defense — Reservation of Right to Amend. Defendant reserves the right to assert additional affirmative defenses, special exceptions, counterclaims, cross-claims, or third-party claims that become known through investigation or discovery, consistent with Tex. R. Civ. P. 63 and 94.

VI. DEMAND FOR DOCUMENTATION AND STRICT PROOF

9. Defendant demands that, before judgment, Plaintiff produce admissible evidence of each of the following:

a. The signed account agreement, cardholder agreement, or contract under which the alleged debt arose, together with all amendments and change-of-terms notices;

b. A complete set of monthly account statements from inception through charge-off, evidencing the transactions, charges, payments, interest, and fees that make up the balance claimed;

c. An itemization of the principal, interest, fees, and other charges comprising the amount demanded, with the contractual or statutory authority for each charge;

d. The transfer records and account information on which Plaintiff relies to show it acquired the right to collect Defendant's account, including intermediate transfers on which it relies; and

e. Proof that Plaintiff is the present owner and real party in interest entitled to enforce the alleged debt, and (if a third-party debt collector) proof of the surety bond required by Tex. Fin. Code § 392.101.

VII. NOTICE OF POTENTIAL FDCPA / TDCA COUNTERCLAIM

10. Defendant gives notice that the facts of this matter may give rise to a counterclaim against Plaintiff and/or its predecessors under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., including actual damages, court-allowed additional damages up to $1,000 in an individual action and, upon a successful action, costs and a reasonable attorney's fee under 15 U.S.C. § 1692k, and/or under the Texas Debt Collection Act, Tex. Fin. Code ch. 392 (which is tied to the Texas Deceptive Trade Practices Act, Tex. Bus. & Com. Code § 17.41 et seq.), for conduct such as suing on a time-barred or unverified debt, failing to provide § 1692g validation, collecting without the required bond, or using false, deceptive, or unfair means to collect.

☐ Defendant asserts no counterclaim at this time and reserves all rights.
☐ Defendant asserts the FDCPA/TDCA counterclaim set forth in the attached/following pleading under Tex. R. Civ. P. 97.

VIII. PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff take nothing by reason of its suit, that Defendant be discharged with costs, that the Court grant any counterclaim relief asserted herein, and that Defendant recover such other and further relief, at law or in equity, to which Defendant may show itself justly entitled.

IX. JURY DEMAND

☐ Yes — Defendant demands a trial by jury on all issues so triable and will pay the jury fee required by Tex. R. Civ. P. 216.

☐ No — Defendant does not demand a jury trial at this time.

X. SIGNATURE

Respectfully submitted this [____] day of [____________], 20[____].

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
State Bar of Texas No. (if attorney): [____________]
[Street Address]
[City], Texas [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

Partial identifiers for an initial pleading in district, county, statutory county, statutory probate, or business court (Tex. Civ. Prac. & Rem. Code § 30.014):

• Last three digits of Defendant's driver's license number, if one has been issued: [___] ☐ No driver's license issued
• Last three digits of Defendant's Social Security number, if one has been issued: [___] ☐ No Social Security number issued

Do not enter the full numbers. Section 30.014 does not list justice courts; omit this block for a justice-court answer.

XI. VERIFICATION / UNSWORN DECLARATION (FOR A RULE 93 VERIFIED PLEA)

My name is [____________]. My date of birth is [__/__/____], and my address is [____________]. I declare under penalty of perjury that the factual statements in the foregoing Answer, including the following Rule 93 denial(s), are true and correct: [IDENTIFY EACH VERIFIED DENIAL ASSERTED].

Executed in [____________] County, State of [____________], on the [____] day of [____________], 20[____].

/s/ [____________________________________]
[____________________________________], Declarant

XII. CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Defendant's Original Answer and Affirmative Defenses was served on Plaintiff's counsel of record (or on Plaintiff, if unrepresented) in accordance with Tex. R. Civ. P. 21 and 21a on the [____] day of [____________], 20[____], by the following method:

☐ Electronic service through the Texas eFileTexas.gov / electronic-filing manager (for represented parties)
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery / Commercial Delivery Service
☐ Email (where permitted under Rule 21a)
☐ Fax

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

TEXAS PRACTICE NOTES

• Answer deadline: In District and County Courts, the Original Answer is due "by 10:00 a.m. on the Monday next after the expiration of twenty (20) days" after service. Tex. R. Civ. P. 99(b). In Justice Court, the deadline is generally the 14th day after service under Tex. R. Civ. P. 502.5. Calendar immediately; a default judgment may be entered if no answer is filed.
• General denial: A Tex. R. Civ. P. 92 general denial puts Plaintiff to its proof on all elements and is usually sufficient by itself.
• Sworn account trap: In district/county court, if Plaintiff pleads a sworn account under Tex. R. Civ. P. 185, file a verified denial under Tex. R. Civ. P. 93(10) or the account may be prima facie proof. In Justice Court, those rules do not automatically apply; see Tex. R. Civ. P. 500.1(e). Note that credit-card debt is frequently held NOT to qualify as a true sworn account.
• Statute of limitations: Four years for debt under Tex. Civ. Prac. & Rem. Code § 16.004(a)(3), specified account actions under subsection (c), and residual claims under § 16.051; classify the pleaded theory and instrument. A debt buyer may not bring the time-barred consumer-debt action described in Tex. Fin. Code § 392.307(c), and payment or reaffirmation does not revive an action barred there under subsection (d). Outside that debt-buyer rule, a signed written acknowledgment can affect a limitations defense under Tex. Civ. Prac. & Rem. Code § 16.065; review the actual document and claim.
• Licensing / bond: Texas does not license third-party debt collectors, but they must file a $10,000 surety bond with the Secretary of State before collecting. Tex. Fin. Code § 392.101. Confirm bond status via the Secretary of State's debt-collector search.
• TDCA / DTPA: The Texas Debt Collection Act (Tex. Fin. Code ch. 392) is enforceable and a violation is also a DTPA violation (Tex. Fin. Code § 392.404), supporting damages and attorney's fees. The TDCA has no express limitations period; courts commonly apply a two-year period (cf. Tex. Bus. & Com. Code § 17.565 for DTPA claims) — verify before relying.
• Compulsory counterclaim: An FDCPA/TDCA claim arising from collection of this debt may be compulsory under Tex. R. Civ. P. 97(a).

Sources and References

• Texas Rules of Civil Procedure (incl. 92, 93, 94, 99, 185, 502.5): https://www.txcourts.gov/rules-forms/rules-standards/
• Tex. R. Civ. P. 99 (answer deadline) — TexasLawHelp deadline guidance: https://texaslawhelp.org/tools/deadline-calculator
• Tex. Civ. Prac. & Rem. Code ch. 16 (limitations): https://statutes.capitol.texas.gov/Docs/CP/htm/CP.16.htm
• Tex. Fin. Code ch. 392 (Texas Debt Collection Act): https://statutes.capitol.texas.gov/Docs/FI/htm/FI.392.htm
• Tex. Fin. Code § 392.101 (bond): https://law.justia.com/codes/texas/finance-code/title-5/chapter-392/subchapter-b/section-392-101/
• Tex. Fin. Code § 392.307 (time-barred debt; debt buyers): https://statutes.capitol.texas.gov/Docs/FI/htm/FI.392.htm#392.307
• Secretary of State — Third-Party Debt Collector bond search & FAQ: https://www.sos.state.tx.us/statdoc/faqs2900.shtml
• Texas State Law Library — Time-Barred Debts: https://guides.sll.texas.gov/debt-collection/time-barred-debts
• Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.: https://www.ftc.gov/legal-library/browse/rules/fair-debt-collection-practices-act-text
• CFPB — time-barred debt: https://www.consumerfinance.gov/ask-cfpb/can-debt-collectors-collect-a-debt-thats-several-years-old-en-1423/